EFF Press Release Archives

Press Releases: March 2012

Case Raises Key Questions About User Rights in Cloud-Based Storage

San Francisco - A small business owner who used Megaupload's cloud-based storage system as part of his daily operations has asked a federal court to establish a process that would allow him and other lawful Megaupload users to get their files back. The procedure would help rectify the collateral damage caused by the government's seizure of Megaupload.com as part of a copyright infringement investigation.

The Electronic Frontier Foundation (EFF) represents Kyle Goodwin, who runs a business reporting on high school sporting events in Ohio. Goodwin stored his video footage on Megaupload's servers as a backup to his hard drive. In January, the FBI shut down Megaupload.com and executed search warrants on the company's servers, locking out all Megaupload customers in the process. When Goodwin's hard drive crashed, he could not get access to any of his own video files, which he needed to conduct his business.

"The court can help make Mr. Goodwin – an innocent party here – whole again," said EFF Staff Attorney Julie Samuels. "With government seizures growing, we're likely to see more and more cases like this, where lawful customers of a cloud service lose property in a federal copyright case. We're hoping the court will set an important precedent to protect users from overzealous government agents."

Megaupload was leasing some of its servers from hosting company Carpathia, and after the government finished its examination of the servers, it told Carpathia it was free to delete the contents. This week, Carpathia moved for a protective order that would allow for an approved procedure for customers to retrieve their files before deletion. The brief EFF filed today was in support of that motion, urging the judge to expedite the return of rightful property to Goodwin and other lawful Megaupload users.

"Mr. Goodwin has suffered a significant loss to his business, through no fault of his own." said EFF Intellectual Property Director Corynne McSherry. "Megaupload's innocent users deserve an opportunity to get their important data back before it's destroyed forever."

EFF was assisted by co-counsel Abraham Sofaer of the Hoover Institution and John Davis of Williams Mullen.

EFF Argues that Subpoenas Threaten Users' Anonymous Speech Rights

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal appeals court Wednesday to block administrative subpoenas from the Securities and Exchange Commission (SEC) that would reveal the identities of three pseudonymous Gmail users without meeting the legal standards for identifying anonymous speakers.

In an amicus brief filed in the U.S. Court of Appeals for the Ninth Circuit, EFF argued that the SEC failed to support its subpoenas with sufficient evidence to demonstrate a compelling need for the information that would overcome the emailers' constitutional right to speak anonymously.

"The First Amendment provides a baseline level of protection for speakers who choose to communicate their messages to the world anonymously or pseudonymously," said EFF Senior Staff Attorney Matt Zimmerman. "Lawbreakers may not hide behind the First Amendment, but investigating agencies cannot force companies like Google to disclose the identities of their customers who are speakers without demonstrating the investigation is legitimate. Here, the SEC has failed to provide anything but speculation that a law was even broken."

The SEC's subpoenas are part of an investigation into a potential "pump and dump" scheme involving Jammin' Java, Inc. which saw its stock price soar and plummet within a short period of time in late 2010 and early 2011. The SEC has argued that "online newsletters" potentially containing "materially misleading information" were distributed around the time of the stock price fluctuation. However, the SEC has not explained why it has targeted the Gmail account holders, nor has it even identified any newsletters in question, much less link the users to any allegedly illegal activities. In Wednesday's amicus filing, EFF explained why it would be particularly dangerous to allow government agencies the ability to investigate speakers without demonstrating a legitimate need for the information.

"Agencies like the SEC wield enormous powers to intrude into the private lives of Americans," Zimmerman said. "Especially because such agencies can ordinarily issue subpoenas without the direct oversight of the courts, courts must ensure that First Amendment rights be given full effect."

San Francisco - The Electronic Frontier Foundation (EFF) joined the American Civil Liberties Union (ACLU) Foundation and the ACLU Foundation of Texas Friday in backing a judge who required a search warrant before approving the seizure of two months of cell phone location data by law enforcement.

In this case, the government asked a magistrate judge to approve a request to two cell phone companies for 60 days of cell phone location records as part of a routine law enforcement investigation. The judge denied the request, saying it was necessary for the government to get a warrant based on probable cause before it could obtain the records. In an amicus brief filed in the U.S. Court of Appeals for the 5th Circuit, EFF argues that the judge was correct, as getting a warrant is essential to ensuring Fourth Amendment protections.

"The Supreme Court ruled earlier this year in United States v. Jones that the GPS tracking of a vehicle without a warrant violates the reasonable expectation of privacy guaranteed by the Fourth Amendment to the Constitution. This is a very similar situation," said EFF Staff Attorney Hanni Fakhoury. "People carry their cell phones with them wherever they go, all day long. Records of where we've been can reveal information about our health, our religion, our hobbies, and our politics. As technology advances, these records will become only more detailed and intrusive."

The government claims that cell phone users voluntarily disclose their physical location to their service provider every time their phone connects to a cell phone tower, meaning they give up their privacy rights under the "third-party doctrine." However, this theory would undermine privacy in nearly any networked communication. In fact, in the Jones case, Justice Sonia Sotomayor expressed concern about the third-party doctrine, writing that it was "ill-suited to the digital age."

"The judge in this case has a right to demand probable cause before allowing access to this sensitive information," Fakhoury said. "This is a powerful tool that police should be able to use in criminal investigations, but only after they can get a warrant based on probable cause."

The Center for Democracy and Technology (CDT) and the National Association of Criminal Defense Lawyers (NACDL) also signed on to Friday's brief.

Pornographic Film Companies Abusing the Law to Get Quick Settlements

San Francisco - The Electronic Frontier Foundation (EFF) is backing Internet service providers (ISPs) in an effort to quash subpoenas issued in a predatory lawsuit over the alleged illegal downloading of adult material.

The American Civil Liberties Union Foundation and the ACLU of the Nation's Capitol joined EFF in the amicus brief submitted today, arguing that AF Holdings unfairly sued more than a thousand unnamed Internet users in the District of Columbia, even though the users were located all over the country. AF Holdings argues that it is allowed to obtain the identities of the ISPs' customers in D.C., because they might reside in the District or the alleged infringement may have occurred there. But the ISPs that were subpoenaed – including Cox, AT&T, and Verizon – told the court that it was easy to discover that only 20 of the IP addresses were associated with Washington, D.C.

"AF Holdings could have found out where the IP addresses at issue were probably located simply by using a geo-location service that costs about $8 per thousand addresses," said EFF Intellectual Property Director Corynne McSherry. "But the company didn't do that, because its doesn't want to know. Following the rules would make its job harder, requiring it to file lawsuits across the country against thousands of individuals rather than suing all Does at once. Thousands of lawsuits just doesn't fit the copyright troll business model."

Today's brief is the latest in EFF's efforts to stop copyright trolls – content owners and lawyers who team up to extract settlements from thousands of defendants at a time. Typically, once the identities of suspected infringers are obtained from ISPs, plaintiffs send settlement letters offering to make the accusations go away for a few thousand dollars, a sum considerably smaller than what defendants would need to fight the case in court. In addition to the problem of jurisdiction, many of these cases also lump hundreds of defendants together, making it even harder for Internet users to defend themselves. When you consider the added stigma over association with pornography, you can see how the deck is stacked against subpoena targets.

"Once these copyright trolls get names from ISPs, the cases are essentially over," said EFF Staff Attorney Mitch Stoltz. "We can't let them continue to game the system with these shoddy lawsuits. We're asking the judge to force AF Holdings to play by the rules and respect the rights of each and every defendant."

EFF and Other Groups Led Campaign for Neutrality in Payment Services

San Francisco - Payment service provider PayPal has announced a new speech-friendly policy for online book sales, reversing plans to shut off payment processing to publishers of certain forms of erotic literature.

"Free speech in the 21st Century depends on a chain of electronic service providers, and financial services like PayPal play a critical role in the unfettered exchange of information and ideas in the digital world," said Rainey Reitman, Activism Director of the Electronic Frontier Foundation (EFF). "We are so glad that PayPal has clarified its policy, and won't interfere with lawful access to legal content."

EFF joined the National Coalition Against Censorship, American Booksellers Foundation for Free Expression, the ACLU of California and other groups in calling on PayPal to support free speech after online publishers and retailers – including Book Strand, Smashwords, and eXessica – were notified that their accounts would be closed unless they stopped selling any erotic books containing descriptions of rape, incest, and bestiality. In an open letter to PayPal, the coalition told the company that this would severely restrict the public's access to a wide range of legal material.

Today, PayPal announced that it would focus its policy on e-books that contain potentially illegal images under U.S. law – not on text-only descriptions. Also, PayPal says it will no longer demand that publishers remove all books in a category. Instead, it will identify specific books that might violate the law, and give the site operator or author opportunity to respond and challenge the notice.

"The Internet cannot be a true global forum for expression if private companies that provide communication and payment services operate as morality police," said EFF Senior Staff Attorney Lee Tien. "The Internet is a global forum where ideas can be freely aired, exchanged, and criticized. We're especially pleased that PayPal will only target specific works and not entire websites."

Warner Must Take Responsibility for Baseless Copyright Infringement Notices

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal judge Monday to reject arguments from Warner Brothers Entertainment claiming that the company's automated scheme to send copyright infringement notices absolves it of responsibility for the system's major flaws.

In this case, Warner is accused of sending thousands of takedown notices for content it did not own to a cyber-locker site called Hotfile. Hotfile asked for damages under the Digital Millennium Copyright Act (DMCA), which holds copyright users accountable if they send takedown notices in bad faith. However, Warner insists that while it knew it was issuing some bad takedown requests with its semi-automated system, the errors should be excused by the court because a computer made the mistake – not a human. In an amicus brief filed Monday, EFF argues that Warner cannot wash its hands of its responsibility for the improper removal of content from Hotfile's servers.

"Hotfile's customers unfairly lost access to content because of Warner's bogus takedowns. But under Warner's theory, any company could sidestep accountability for abusing the DMCA by simply outsourcing the process to a computer," said EFF Intellectual Property Director Corynne McSherry. "In fact, the companies would have a perverse incentive to dumb down the process, removing human review. What Warner is doing here is a ploy to undermine the DMCA provisions that protect Internet users from overbroad and indiscriminate takedowns like the ones it issued."

The publicly available facts in this case indicate that Warner's system only considered the title of the work – not nearly enough information to base a good faith belief of any copyright infringement. Warner's system took down files with words in their titles like "The Box," "The Town," and "Unknown," apparently without checking to see if the file was a Warner movie or a child's book report or something else. EFF told the court Monday that Warner knew this driftnet technique would inevitably cause a substantial amount of lawful content to be removed from Hotfile.

"Cloud storage sites like Hotfile are becoming increasingly important," said EFF Staff Attorney Mitch Stoltz. "But improper takedowns like Warner's undermine their usefulness. Companies must be held responsible when their sloppy processes hurt other businesses and Internet users."

Asks FCC to Broaden Wireless Broadcast Realm

Electronic Frontier Foundation Media Release

San Francisco, CA - The Electronic Frontier Foundation (EFF) today supported a spectrum policy proposal from the Federal Communications Commission (FCC) and asked the FCC to acknowledge its First Amendment obligation to allocate additional spectrum for unlicensed use. Unlicensed use of spectrum would permit the expansion of wireless communication, including Wi-Fi-style technology.

EFF asked the FCC to adopt the policy proposed in Notice of Inquiry 02-328, "Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band." In this notice, the FCC seeks comment on the allocation of additional spectrum for unlicensed use, similar to the allocation that makes Wi-Fi devices possible. The Commission proposes to carve spectrum for unlicensed use out of unused TV station frequencies, which would dramatically increase the "open" spectrum available for technological innovation.

"Spectrum regulation is a form of speech regulation," said EFF Outreach Coordinator Cory Doctorow. "We support the Commission's proposal to make more spectrum available for unlicensed applications like Wi-Fi, moving us closer to a world where we all may speak over the airwaves."

The FCC traditionally justifies regulating spectrum use on grounds of scarcity, arguing that if anyone were allowed to broadcast, the resulting chaos would create so much interference that no one would be heard. The success of Wi-Fi and other uses of the unlicensed 2.4GHz band demonstrates that unlicensed use models allow far more speakers than the FCC's old "command-and-control" model of spectrum allocation.